What is a restrictive covenant on a property, and does it matter?

Most covenants on ordinary houses are harmless historical furniture — a nineteenth-century prohibition on operating a tannery — and a good conveyancer will say so. The ones that matter are recent ones imposed by developers on new estates, and older ones that catch an extension, a conversion, or letting the property out. The mistake is assuming an old covenant is dead simply because it is old.

Step by step

1. Find them on the title.Covenants are set out in the charges register of the title register, often by reference to a deed that has to be obtained separately. Anyone can download a title register from HM Land Registry for a small fee.
2. Read the actual deed, not the summary.The register frequently says only that the land is subject to the covenants in a named conveyance. Order the deed. The wording of the covenant, and who has the benefit of it, are what decide everything.
3. Work out who could enforce it.A covenant is only worth something to someone who has the benefit of it — usually the owner of land that was retained when the covenant was imposed. If that land has been broken up, built over or cannot be identified, enforcement may be practically impossible.
4. Look for a consent mechanism.Many covenants prohibit something 'without the consent of' a named party. Where that party still exists — commonly a developer or a management company on a modern estate — the answer is usually to ask for consent, which is often given for a fee.
5. Treat new-build estate covenants seriously.Modern estates routinely impose covenants about parking, external alterations, fences, satellite dishes, business use and keeping animals, enforced by a management company. These are current, enforceable and are what most disputes are actually about.
6. Consider indemnity insurance.Where a covenant has already been breached historically and nobody has objected for many years, a restrictive covenant indemnity policy is the conventional route. It insures against enforcement; it does not make the breach lawful, and applying for consent after taking the policy usually voids it.
7. Know the tribunal route exists.The Upper Tribunal can modify or discharge a restrictive covenant on defined grounds, including that it is obsolete or that it impedes reasonable use of the land. It is a formal, costly process and is used where the sums justify it.
8. Do not confuse a covenant with planning permission.Planning permission is public law and a covenant is a private obligation. Having planning permission does not release you from a covenant, and a covenant does not stop a planning application. You may need both.
9. Deal with it before you buy, not after.If you have plans for the property, tell your conveyancer at the outset so the covenants are checked against those plans. Discovering the restriction after completion removes every option except the expensive ones.
10. Check the position in Scotland separately.Scotland uses real burdens rather than restrictive covenants, with its own rules on enforcement and on discharge through the Lands Tribunal for Scotland. Ask a Scottish solicitor rather than applying the English analysis.

Tips

• Download the title register before you offer if you have plans for the property. It costs a few pounds and it is the fastest way to find a problem.
• Order the deed the register refers to. The register's summary is not the covenant.
• Tell your conveyancer what you intend to do with the property on day one. Covenants are only checked against plans they know about.

Common mistakes

• Assuming a Victorian covenant is unenforceable — Age does not extinguish a covenant. It affects the practicalities of enforcement and it is not a legal answer on its own.
• Contacting the beneficiary before arranging indemnity insurance — Insurers ask, and contact usually makes the risk uninsurable. Take advice on the order before picking up the phone.

If it doesn't work

Questions people ask